Citation Nr: 0609222
Decision Date: 03/30/06 Archive Date: 04/07/06
DOCKET NO. 05-01 596 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in St.
Petersburg, Florida
THE ISSUES
1. Entitlement to an increased rating for enucleation of the
right eye, currently evaluated as 10 percent disabling after
a 30 percent deduction.
2. Entitlement to special monthly compensation based
anatomical loss of the right eye.
REPRESENTATION
Appellant represented by: The American Legion
WITNESSES AT HEARING ON APPEAL
Appellant and spouse
ATTORNEY FOR THE BOARD
Milo H. Hawley, Senior Counsel
INTRODUCTION
The veteran had active service from January 1946 to May 1947.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a January 2004 decision of the
Department of Veterans Affairs (VA) Regional Office (RO) in
Philadelphia, Pennsylvania. The St. Petersburg, Florida, RO
currently has jurisdiction of the veteran's claims file.
FINDINGS OF FACT
1. At the time of the veteran's entry into active service
vision in the service-connected right eye was limited to only
light perception.
2. The veteran's enucleation of the right eye is currently
manifest by anatomical loss of the right eye with artificial
eye worn and the veteran is not blind in his nonservice-
connected left eye.
CONCLUSIONS OF LAW
1. The criteria for an evaluation greater than 10 percent
for enucleation of the right eye, after deduction of
30 percent, have not been met. 38 U.S.C.A. §§ 1155, 5102,
5103, 5103A, 5107 (West 2002 and Supp. 2005); 38 C.F.R.
§§ 3.383, 4.1, 4.2, 4.7, 4.10, 4.22, 4.79, 4.80, Diagnostic
Codes 6066, 6070 (2005).
2. The criteria for special monthly compensation based on
anatomical loss of the right eye have not been met.
38 U.S.C.A. §§ 1114(k), 5102, 5103, 5103A, 5107 (West 2002
and Supp. 2005); 38 C.F.R. § 3.350, 4.22 (2005).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
I. Veterans Claims Assistance Act
The United States Court of Appeals for Veterans Claims
(Court's) decision in Pelegrini v. Principi, 18 Vet. App. 112
(2004), held, in part, that a Veterans Claims Assistance Act
of 2000 (VCAA) notice, as required by 38 U.S.C.A. § 5103(a),
must be provided to a claimant before the initial unfavorable
agency of original jurisdiction (AOJ) decision on a claim for
VA benefits. In this case, the veteran was provided VCAA
notice by official letter, dated in July 2003, prior to the
January 2004 decision appealed herein.
In addition to the July 2003 letter the veteran was provided
with a statement of the case in September 2004, which
included VCAA implementing regulations, and was provided with
additional VCAA notification by letter in January 2005. The
Pelegrini Court held, in part, that a VCAA notice consistent
with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) must:
(1) Inform the claimant about the information and evidence
not of record that is necessary to substantiate the claim;
(2) inform the claimant about the information and evidence
that VA will seek to provide; (3) inform the claimant about
the information and evidence the claimant is expected to
provide; and (4) request or tell the claimant to provide any
evidence in the claimant' s possession that pertains to the
claim. 18 Vet. App. 120-121.
The content of the notices provided to the veteran has fully
complied with the requirements of 38 U.S.C.A. § 5103(a) and
38 C.F.R. § 3.159(b). The veteran was advised of the
information and evidence necessary to substantiate his claim
and informed of what information and evidence he was expected
to provide as well as what VA would attempt to provide. He
was advised to submit any relevant medical reports as well as
what other types of evidence would be relevant, and he was
effectively advised to submit any evidence in his possession
that pertained to the claim. The VCAA implementing
regulation, provided to the veteran in the statement of the
case, also effectively advised him to submit information that
was relevant to his claims that was in his possession.
With respect to the VA's duty to assist, the RO has properly
obtained all treatment records identified by the veteran. He
has been afforded a VA examination and a personal hearing.
The Board finds that the evidence is sufficient on which to
decide the claim.
During the pendency of this appeal on March 3, 2006, the
Court issued a decision in the consolidated appeal of
Dingess/Hartman v. Nicholson, Nos. 01-1917 and 02-506, which
held that the VCAA notice requirements of 38 U.S.C.A.
§ 5103(a) and 38 C.F.R. § 3.159(b) applied to all five
elements of a service connection claim. Since the claim
currently before the Board is for an increased rating and is
being denied, no effective date will be assigned and there
can be no possibility of any prejudice to the veteran.
II. Increased Rating
In accordance with 38 C.F.R. §§ 4.1, 4.2 and Schafrath v.
Derwinski, 1 Vet. App. 589 (1991), the Board has reviewed the
service medical records and all other medical evidence of
record pertaining to the history of the veteran's
service-connected disabilities. The Board has found nothing
in the historical record that would lead to the conclusion
that the current evidence of record is not adequate for
rating purposes. The Board is of the opinion that this case
presents no evidentiary considerations, except as noted
below, that would warrant an exposition of the remote
clinical history and findings pertaining to the disabilities
at issue.
Disability evaluations are determined by applying the
criteria set forth in the VA Schedule for Rating Disabilities
(Rating Schedule), found in 38 C.F.R. Part 4. The Board
attempts to determine the extent to which the veteran's
service-connected disability adversely affects his ability to
function under the ordinary conditions of daily life, and the
assigned rating is based, as far as practicable, upon the
average impairment of earning capacity in civil occupations.
38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.10. Regulations
require that where there is a question as to which of two
evaluations is to be applied, the higher evaluation will be
assigned if the disability picture more nearly approximates
the criteria required for that rating; otherwise, the lower
rating will be assigned.
The report of the veteran's January 1946 service entrance
examination reflects that the veteran had been rejected at an
induction station in August 1944 for vision less than minimum
requirements for general service with traumatic cataract of
the right eye and lacerated iris and cornea of the right eye.
The examination report indicates that his eye abnormalities
included myopic astigmatism and corneal opacity with
traumatic cataract and that his vision without correction, in
the right eye, was light perception, and that this was
unimproved with correction. His vision in the left eye was
indicated to be 20/20 with correction. The service entrance
examination report reflects that the veteran's vision was
below general service standards and that he was previously
accepted for limited service relating to his vision. A
March 1946 service record reflects that eye examination
revealed that the veteran had light perception only in the
right eye. The report of the veteran's April 1947 service
separation examination indicates that his eye abnormalities
included amblyopia NE xanopsin and that his uncorrected and
corrected vision on the right was 20/400.
A July 1947 letter from a private physician indicates that
the diagnoses included old perforating injury of the right
eye with secondary glaucoma.
A VA record relating to a period of VA hospitalization in
August 1947 reflects that the veteran had vision only for
light in the right eye. This record together with a
November 1947 VA record relating to a period of VA
hospitalization indicate that the veteran reported an initial
injury to the right eye when he was struck by a BB in 1934.
He reported two other incidents of trauma to the right eye
during his active service.
A February 1951 letter from a private physician indicates
that the physician had assisted in removing the veteran's
right eye in February 1948. The physician indicated that
according to his records the veteran was struck in the right
eye in 1936 and had a reduction in vision as a result, but
had very little pain. After admission into the Army he
received two injuries to the right eye. In May 1947 the
veteran had secondary glaucoma but still good light
perception. The light perception gradually disappeared and
was faulty in January 1948. The physician indicated that it
was his opinion that the injuries during the veteran's
service aggravated his previous injury and caused secondary
glaucoma which led to the loss of his eye.
An April 1961 RO decision granted service connection for
enucleation of the right eye and assigned a 10 percent
evaluation after deduction of 30 percent.
In cases involving aggravation by active service, the rating
will reflect only the degree of disability over and above the
degree existing at the time of entrance into the active
service, whether the particular condition was noted at the
time of entrance into active service, or it is determined
upon the evidence of record to have existed at that time. It
is necessary therefore, in all cases of this character to
deduct from the present degree of disability the degree, if
ascertainable, of the disability existing at the time of
entrance into active service, in terms of the Rating
Schedule, except that if the disability is total
(100 percent) no deduction will be made. 38 C.F.R. § 4.22.
The veteran has been assigned a 10 percent evaluation, after
a 30 percent deduction, for his service-connected enucleation
of the right eye. Therefore, he has been assigned the
maximum schedular evaluation that may be granted under
Diagnostic Code 6066 of the Rating Schedule, regarding
evaluating anatomical loss of one eye with vision in the
other eye of 20/40.
With respect to the degree of vision loss at the time of the
veteran's entrance to active service, he testified, at page
three, of the December 2005 personal hearing, that he could
see 4 to 5 foot at the time of his service entrance.
However, the Board will accord greater weight to the
contemporaneous competent medical evidence, in the form of
the veteran's January 1946 service entrance examination and
his March 1946 service medical record, both of which indicate
that his right eye vision was limited to light perception
only. Diagnostic Code 6070 provides that a 30 percent
evaluation will be awarded for blindness in one eye, having
only light perception, where the other eye is 20/40 or
better. Therefore, 30 percent is the degree of disability
shown to have existed at the time the veteran entered his
active service.
Treatment records and the veteran's testimony during the
December 2005 personal hearing indicate that he currently
wears an artificial eye. Therefore, an additional 10 percent
may not be awarded for inability to wear an artificial eye,
which is provided for at note six following the diagnostic
codes for impairment of central visual acuity.
Compensation is payable for the combination of blindness in
one eye as a result of service-connected disability and
blindness in the other eye as a result of
nonservice-connected disability. 38 C.F.R. § 3.383(a)(1).
Loss of use or blindness of one eye, having only light
perception, will be held to exist when there is an ability to
recognize test letters at one foot and when further
examination of the eye reveals that perception of objects,
hand movements or counting fingers cannot be accomplished at
3 feet, less or extensive vision, particularly perception of
objects, hand movements, or counting fingers at distance less
than 3 feet, being considered of negligible utility.
38 C.F.R. § 4.79 (2005).
The report of a September 2003 VA examination reflects that
the veteran currently has 20/20 vision in the nonservice
connected left eye. Therefore a preponderance of the
evidence is against an evaluation greater than the 10 percent
assigned after a 30 percent deduction, under any applicable
criteria for enucleation of the right eye.
III. Special Monthly Compensation
Special monthly compensation under 38 U.S.C.A. § 1114(k) is
payable for each anatomical loss or blindness of one eye
having only light perception. 38 C.F.R. § 3.350(a). Loss of
use or blindness of one eye, having only light perception,
will be held to exist when there is inability to recognize
test letters at one foot and when further examination of the
eye reveals that perception of objects, hand movements, or
counting fingers cannot be accomplished at three feet.
Lesser extensive vision, particularly perception of objects,
hand movements, or counting fingers at distances less than
three feet is considered of negligible utility. 38 C.F.R.
§ 3.350(a)(4).
Because the veteran's right eye was limited to light
perception only at the time of his entry into active service
and special monthly compensation is awarded for anatomical
loss or blindness of one eye having only light perception,
the veteran's right eye was of sufficient disability, having
only light perception, at service entrance, to warrant
special monthly compensation at that time. Since an award of
special monthly compensation could only be made based upon
the degree of disability over and above the degree existing
at the time of entrance into active service, a preponderance
of the evidence is against an award of special monthly
compensation based on anatomical loss of the right eye
because an award of special monthly compensation under
38 U.S.C.A. § 1114(k) could have been made at the time of the
veteran's entry into active service because of the veteran
only having light perception in the right eye. There is no
provision in governing law and regulations for a separate
additional award of special monthly compensation for
anatomical loss of the right eye in addition to an award of
special monthly compensation for having only light perception
of the right eye. Accordingly, a preponderance of the
evidence is against an award of special monthly compensation
based on anatomical loss of the right eye.
ORDER
An evaluation for enucleation of the right eye greater than
10 percent, after a 30 percent deduction, is denied.
Special monthly compensation based on anatomical loss of the
right eye is denied.
____________________________________________
M. SABULSKY
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs